Lead Opinion
The opinion of the Court was delivered by
In a former appeal to this Court in this cause
(Lytle v. Southern Ry.
—Carolina
Division,
152 S. C., 161,
In the judgment of this Court, however, we said: “Ret the defendant be allowed to make a motion, if so advised, to make the widow a party. * * * ”
*223 The defendant did not take advantage of the opportunity to have the widow, Sallie Lytle, brought into the suit.
On the trial of the case, the presiding Judge, Honorablе C. J. Ramage, followed our decision on the demurrer, and refused the defendant’s motion for the direction of a verdict in its favor, and submitted the cause of action to the jury. The result of the trial was a verdict in favor of the plaintiff for the sum of $2,200.00, on which verdict there was a proper entry of judgment.
From the adverse judgment, the defendant has appealed on several exсeptions. All of these, with- the exception of one, relate to the refusal to grant the defendant’s motion for a directed verdict in its favor. The remaining exception complаins of error on the part of the trial Judge in giving certain instructions to the jury at the request of the plaintiff.
The same legal position contended for by the appellant in its exception аs to the charge to the jury is the foundation, also, of all its exceptions, save one, relating to the refusal to direct a favorable verdict for the appellant. A disposition, therefore, of the exception complaining of the instructions given will dispose of the similar question raised in other exceptions.
The instructions complained of were these: “I charge you in this connection that where a wife, a married woman, elopes with an adulterer and willfully and without just cause abandons her husband and refuses to live with him, and is living in adultery with another, that the unfaithful wifе has no' rights as a widow, and is not entitled to benefit from the wrongful death of her deceased husband, that the mother in the absence of children is the proper person for whose benefit the action should be brought.”
At the outset we are met with the position of the respondent that the legal principles announced by the trial Judge were, and are, “the law of the case,” аnd for that reason we are bound, as was the trial Court, by the former decision. *224 With this view we are in accord, but we deem it proper to say something more in support of the holding of the Court in the former appeal.
The exceptions of the appellant reiterate the contention of the former appeal that “no divorce having been granted or shown, Sallie Lytle was the legal surviving wife and widow of plaintiff’s intestate, under the express provisions of the Federal Employers’ Liability Act of Congress (45 U. S. C. A., §§ 51-59), and no action could be brought or maintained for his mother or any other beneficiary, there being no surviving children.”
It is argued in this connection that “no unfaithful conduct on the part of such childless widow, as alleged in the complaint, will forfeit her beneficial right of action under said Federal Act or vest any right of action in favor of the intestate’s mother.”
Recognizing our duty to seek an interpretation of the terms employed in the Fedеral statutes in the decisions of the Federal Supreme Court, if decision can be found in point, we have carefully examined the authorities submitted in support of appellant’s positiоn, together with other decisions of that Court which, as we think, have some bearing in this consideration.
In the case of
Chicago, B. & Q. R. Co. v. Wells-Dickey Trust Co.,
There is, however, a fundamental principle of statutory construction that “it is the duty of the Court to ascertain the meaning of the legislature from the words used and the subject-matter tо which the statute relates,
and to restrain
*225
its operation within narrower limits than its words import
if the Court is satisfied that the literal meaning of its language would extend to cases which the legislature never intended to include in it.” (Italics ours.)
Petri v. Commercial Nat. Bank,
Consistently with the foregoing statements, the cases of
New Orleans & N. E. R. Co. v. Harris,
As a further consideration justifying the conclusions we have reached, the term “widow’’ has been defined in the dictionaries: “v t. 1. To make a widow. 2. To deprive of something- desirable or that suggests a husband’s companionship or suppоrt. * * * n. A woman who has lost her husband by death.” A definition of “loss” is given as “to be deprived or bereaved of”; and a definition of “bereave” is: “To deprive, as of something valuable or beloved.” Alsо, from a standpoint of judicial interpretation, it has been held “ ‘widow,’ as used in the Tennessee homestead laws exempting as a homestead certain property for the benefit оf a decedent’s ‘widow,’ etc., means a person who was a member of his family in a legal sense when he died, and does not include one who has forfeited her rights as a member of his family by elоping before her husband’s death and living with another man.” See Words and Phrases, First Series, Vol. 8, at page 7457, citing
Prater v. Prater,
The declared policy of this State in regard to the husband’s duty in the matter of supporting his wife was stated by Chancellor Dargan in the early case of
Hair v. Hair,
10 Rich. Eq. (31 S. C. Eq.), 163, and reaffirmed in
State v. Lancaster,
135 S. C., 412,
*227
The cases cited in appellant’s argument, namely,
Boyce v. Owens,
1 Hill (19 S. C. Law), 8;
McCarty v. McCarty,
2 Stob. (33 S. C. Law), 6,
One other exception, the sixth, remains to be briefly noticed. Therein, it is contended that if the faithless wife, Sallie Dytle, was not entitled to recover under the statute, nevertheless the mother of the intestate was not entitled to recover, since the evidence showed that th intestаte at the time of his death had been married to Maggie Mackey, also called Maggie Dytle, who' survived him, and she was entitled to recover on account of the death of the intestate. Clearly, there is no reasonable basis for this position, since the purported marriage of the intestate to Maggie, even if the same was established by the evidence, was void fоr the reason that no divorce of the marriage of the intestate with Sallie Dytle had occurred. The forfeiture of the rights of Sallie, because of her adulterous conduct, inured to thе benefit of the intestate’s mother, not to Maggie Dytle, whose marriage was not a legal'one.
It follows, on applying the foregoing considerations to the particular facts disclоsed by the evidence in this case, that *228 the deceased employee, Alf. Lytle, did not leave a “widow” entitled to claim the benefit of the provisions of the Federal Employers’ Liability Act, and hence, under the alleged and proven circumstances, the right of recovery, conferred by the Act, accrued solely to his mother.
The judgment of this Court is that the judgment below be, and the same is hereby affirmed.
Concurrence Opinion
(concurring in result) : I concur in the result, believing that the questions raised in this appeal must be governed by the former appeal, reported in 152 S. C., 161,